By: Sandra Day O'Connor
Date: September 11, 1981
Source: Nomination of Sandra Day O'Connor: Hearings Before the Committee on the Judiciary, United States Senate, Ninety-seventh Congress, first session, on the nomination of Judge Sandra Day O'Connor, of Arizona, to serve as an associate justice of the Supreme Court of the United States, September 9, 19, and 11, 1981. Washington, D.C.: U.S. Government Printing Office, 1981, 237–242.
About the Author: Sandra Day O'Connor (1930–) was born in El Paso, Texas, and raised on a 155,000-acre ranch near the Arizona-New Mexico border. After graduating from high school, she enrolled at Stanford University and completed her undergraduate and law degrees in five years. In 1972, she became the Arizona Senate Majority Leader. Seven years later, she was appointed to Arizona's Court of Appeals. President Ronald Reagan (served 1981–1989) appoint her to the United States Supreme Court, where she became the first woman to serve on the United States' highest court. She serves as an associate justice.
IntroductionPresident Jimmy Carter (served 1977–1981) was the first president since Andrew Johnson (served 1865–69) who did not have the opportunity to appoint at least one United States Supreme Court Justice. However, Carter appointed more members to the federal bench than all but four American presidents. Under the Omnibus Judgeship Act of 1978, Carter selected people to fill 152 newly established federal judgeships. Overall, Carter nominated 300 federal judges, or forty percent of the entire federal judiciary. Carter's judicial selections are controversial because of the weight he placed on his nominees' gender and race. In the name of "diversity," Carter nominated nearly one hundred federal judges who were women, African American, and/or Hispanic. This selection process was controversial, as Carter admitted that his nominees were generally less qualified than available white male candidates. Carter's selections were also controversial because they were often "activists" on social issues. Instead of interpreting the law, these liberal judges made social policy by legislating from the bench, especially on such controversial issues as abortion, school prayer, gay rights, and affirmative action.
In part, President Ronald Reagan (served 1981–1989) was elected because of the support of evangelical Christian groups, including the Moral Majority. These groups argued that liberal activist judges violated the constitutional separation of powers doctrine by implementing contentious social policies, bypassing the appropriate elected representative bodies—Congress, state legislatures, town councils, and public school boards. As a result, federal judges were imposing a radical agenda contrary to majority opinion. In the 1980 presidential election, President Ronald Reagan promised to some day nominate the most qualified woman to the Supreme Court. His opportunity arrived when Justice Potter Stewart announced his retirement in 1981. In choosing his replacement, Reagan required that the nominee be a strict constructionist, rather than a liberal judicial activist, and personally oppose abortion. He settled on 51-year old jurist Sandra Day O'Connor.
The main reason Reagan nominated O'Connor was because she was a woman. Reagan was the first president to acknowledge the political power of the gender gap. Not only did women made up fifty-one percent of the electorate, but, additionally, Reagan had captured only forty-seven percent of the female vote. Therefore, O'Connor's nomination was, in part, an attempt by Reagan to close the gender gap. As a strict constructionalist, O'Connor also received the recommendation of Arizona's influential senator Barry Goldwater of Arizona. Feminists and other liberals, including Senator Ted Kennedy (D-Mass.) supported her nomination, believing that O'Connor would uphold a woman's right to an abortion. In contrast, the Moral Majority sharply criticized the O'Connor nomination because of her pro-abortion votes as an Arizona legislator. They accused the Reagan administration of pandering to women voters by failing to nominate the most qualified candidate. The American Bar Association had given O'Connor only a "qualified" rating because of her limited experience as a judge and practicing attorney.
On September 15, 1981, the Senate Judiciary Committee approved O'Connor's nomination unanimously. The Senate confirmed the nomination by a vote of 99–0. Therefore, after some two hundred years and the nomination of one hundred men, the country finally had a female Supreme Court Justice. On the bench, O'Connor has been an independent, moderately conservative centrist. On abortion, she has supported state legislative restrictions, but has refused to reexamine the constitutional validity of Roe v. Wade. Though in O'Connor he failed to obtain a doctrinaire conservative to the Supreme Court, Reagan fared better in the lower courts. During his eight years in office, he nominated almost fifty percent of the federal judiciary, making 404 federal court appointees, virtually all more conservative than O'Connor.
Primary Source: Nomination of Sandra Day O'Connor [excerpt]
SYNOPSIS: During Judge O'Connor's otherwise smooth Senate confirmation hearing, she was repeatedly asked to explain her views on abortion, particularly Roe v. Wade. Conservatives argue that the 1973 Supreme Court decision is a classic example of liberal judicial activism. On September 11, 1981, Senator Jeremiah Denton questions O'Connor's abortion views.
Senator Denton: Thank you, Mr. Chairman.
Good morning, Judge O'Connor.
Judge O'Connor: Good morning.
Senator Denton: At the outset, let me clear up what amounted to a misunderstanding on my part yesterday. I had questioned you on your personal views on abortion, and you stated during that exchange, "It remains offensive at all levels," and stated that you think it is a problem at any level.
Then I thought I heard you say that you would not be in favor of abortion even to save the life of the mother. After several others had thought the same thing, and then having been questioned by some news people, I did look at the transcript and so forth and find out that that is not what you said.
You actually said, "Would I personally object to drawing the line to saving the life of the mother? No, I would not." You went on to say: "Are there other areas?" Then you said, "Possibly."
Therefore, I would have to withdraw my statement since it was based on error in understanding you. I misunderstood you. I would have to say that it appears that indeed you are not more conservative than I thought on that issue, and I would remind you that legislatively the Congress has done what it could to outlaw or forbid payments of government funding of abortion except to save the life of the mother.
That is where Congress drew the line but we could not go any further than just stop Government funding for it. We could not get into the legislation of abortion with respect to the public because we were preempted by a Supreme Court manifestation of judicial activism in the Roe v. Wade decision. Therefore, there is a real problem of that judicial activism, and I am sure that not all of my colleagues would agree that it is the wrong kind but, nevertheless, there was that example.
Therefore, I have learned that you are less conservative than I, and as I go into the Kenneth Starr memorandum I would refer you to a previous statement of yours which said that you felt that your personal feelings should not constitute the basis of decisions made on this matter or any other matter in the Supreme Court, but rather that if there is a constitutional principle which applies, it should be the determining factor.
I submit that in the Declaration we do have the statement, "all men created equal," et cetera, "endowed by their Creator with certain inalienable rights. Among these are life. . . " Then in the Constitution, in the Bill of Rights, article 5, "No person can be deprived of life without due process of law."
Senator East, as you know, has been conducting hearings to determine whether or not a fetus is a person. I agree that this is a very difficult question. I do not agree that it is difficult to determine that it is human life. I believe that that is irrefutable.…
I believe that abortion is the opposite of compassion for that being which needs it the most. I believe that history will prove that once a nation goes that way, from an ethic like ours, as Nazi Germany did, you immediately get involved with infanticide, euthanasia, genocide, and the whole idea of selective murder. This brings into play the question of the convenience of the existence of that person which is based on human judgement. That is why I feel so strongly about what might be called fetal rights, the right to survival on the part of that human life.
I do not believe, with you, that learning more about fetuses will ever change the fact that there is life there, God-given life which we do not understand, and we do not even know what makes grass grow. How can we get into the process of deciding, for convenience or for money—because that kid is going to cost money if it is born—or embarrassment that we want to spare that 13-or 14-year-old girl—and you have said that you are opposed to it for birth control purposes.
However, I want to know what you meant yesterday when you said, "Are there other areas?"—besides saving the life of the mother—and then you said, "Possibly." I would have to say that that is less conservative than that which Congress has indicated as its collective will, and it leaves me befuddled as to where you are. I feel I have gotten nowhere, in that you have said possibly there are other areas. We could go on for perhaps a month, and if that is all the specific you are going to be, I would not know at all where you are coming from philosophically on that issue.
Judge O'Connor: Senator Denton, I believe that I recounted previously for the committee my vote in the legislature on funding in connection with the bill for providing medical care to indigents, where I did support a measure that provided for certain exclusions in addition to what was necessary to save the life of the mother. In that instance it included instances of rape and incest, criminal actions, and I supported that.
Senator Denton: However, the criminal action—a little baby to be—is not involved in.
Judge O'Connor: I simply was trying to indicate,
Senator Denton, where I had had occasion to vote as a legislator because, of course, people—many people—share your very eloquent views and your very perceptive views on this most pressing problem.
There are others who, perhaps out of different concerns, might draw the line in some slightly different fashion or indeed in some substantially different fashion, and these are the troubling issues that come before a legislator when asked to specifically draw the line. I appreciate that problem. I think I can simply indicate to you how I voted at that time on that issue.
Senator Denton: OK. Well, with respect to some of those votes, then, I would like to go into the document which has become known as the Starr memorandum. I would preface that by a question. You feel abortion is personally abhorrent and repugnant. Would it follow that you believe the unborn ought to be legally protected? If so, how and at what stage of their development?
Judge O'Connor: Senator Denton, excuse me. Is that your question?
Senator Denton: Yes. You have stated that you feel it is personally abhorrent and repugnant, and that it is a legislative matter to deal with it. Do you mean by that that we should legally protect the unborn? If so, how, considering the Roe v. Wade activism from the judicial branch?
Judge O'Connor: Well, Senator Denton, a legislative body at the State level today would be limited in that effort by the limitations placed in the Roe v. Wade decision. I recognize that. If a State legislature today were to try to draw the lines, it would have to reckon with that decision, which of course places substantial limitations on the freedom of State legislative bodies presently.
Senator Denton: Until that decision is changed or if something comes up to render it subject to change, it makes your appointment extremely important and your philosophy on that matter extremely important. Therefore, I hope you can appreciate the interest of those tens of millions—and there are tens of millions on the other side—who are interested in your position on that. I am not clear that we have drawn much out. Let me get on this.
Judge O'Connor: Senator Denton, I do appreciate the concerns and the strongly held views of so many people on this issue.
Senator Denton: I understand that.
On July 7, you had two telephone conversations with Kenneth W. Starr, counselor to the Attorney General of the United States.
Judge O'Connor: Excuse me. On what date, please?
Senator Denton: July 7, 1981, is my information.
Did you state in one or both of those conversations that you "know well the Arizona leader of the right-to-life movement, a prominent female physician in Phoenix, and have never had any disputes or controversies with her"?
Judge O'Connor: Senator Denton, I am sure that I indicated that I knew Dr. Gerster. Indeed, she lives in the same community in which I live, the Scottsdale-Paradise Valley Area.
Senator Denton: Yes, and you are acquaintances.
Judge O'Connor: We have children who have attended the same school, and I have seen her on any number of occasions.
I had occasion, of course, to see her in 1974 in my capacity as a legislator as well. She at that time was interested in the house memorial 2002, dealing with the question of whether the Arizona legislature should recommend to the Congress an amendment of the U.S. Constitution as a means of addressing the Roe v. Wade decision. Dr. Gerster—
Senator Denton: Excuse me. I do not mean to be impolite but in the interest of trying to stay within the time, the only part of the question that I am–the question deals with whether or not you said that you had never had any disputes or controversies with that leader, Dr. Gerster. Did you say that, because the Starr memorandum is quoted as having had you saying that?
Judge O'Connor: Senator Denton, I am sure that I did indicate that and I would like to explain precisely why I said that.
As a legislator, I had many instances in which people would come before the legislature and espouse a particular position with regard to a particular bill. I as a legislator was obligated to listen to those views along with the views of others, and then ultimately cast a vote. My receiving of information of that sort and ultimately casting a vote, even if it were cast in a manner other than that being espoused by the speaker, did not cast me in my view in the role of being an adversary.
I did not feel that in my position as a legislator, that every time I voted against a measure that someone in the public sector was supporting publicly in front of me, that I became an adversary. I was not a leader in connection with the passage or defeat of house memorial 2002. I was a legislator—
Senator Denton: I understand. I really do understand the thrust of your answer. It does appear, however, that the thrust that one would take from that answer which was quoted is that you and the right-to-life movement leader there really had no disputes on probably that issue. That I think might have been gleaned from that statement. I leave that to speculation. It certainly would have been my inference from it.
Judge O'Connor: Well, Senator Denton, I think that it is important to recognize that what I am trying to reflect is that because I may have voted differently than Dr. Gerster would have, had she been a legislator, does not mean that we are adversaries.
Senator Denton: Yes, I understand. However, there has been much opposition to your nomination and public statements by Dr. Gerstner, which probably we will hear some of later, concerning her opposition to many of your past legislative decisions. Therefore, there was an inconsistency, not in what your attitude was or what your statement was but I think with respect to the thrust of what that inclusion in Mr. Starr's report might have been interpreted as meaning.
Did you tell Mr. Starr that you did not remember how you voted on a bill to legalize abortion in Arizona, or that there is no record of how you voted on legislation to legalize abortion in Arizona? I believe we heard you say that you had some difficulty remembering one, and you had to get it out of a newspaper because it was not in the legislative records. Somebody in Arizona has said that that was the equivalent of not remembering how one would have voted on the Panama Canal issue.
Judge O'Connor: Senator Denton, as I explained I think in the first day of these hearings, with respect to house bill 20 I frankly had no recollection of the vote. We voted on literally thousands of measures and that bill never went to the floor for a vote. I tended to remember with more clarity those measures which required a vote on the merits on the floor. Committee votes are something else: Technically speaking, you are not voting on the merits in a committee vote. You are voting to put it out of committee with a certain recommendation.
In the year 1970, as reflected in the newspaper articles which I eventually unearthed, house bill 20 was not a major issue at that time in terms of having many people at a committee hearing, in any other way. It was simply not a measure that attracted that much attention.
In addition, house bill 20 was destined never to go to the floor in the State senate. I think it was widely known and believed even when it was in committee that it would never emerge from the Republican caucus. The votes were never there. It was a dead bill.
Senator Denton: Yes. Then it might be relevant to follow up: You stated that some change in Arizona statutes was appropriate, and "had a bill been presented to me that was less sweeping than H.B. 20, I would have supported that. It was not." You broke off, but you meant it was not introduced. Is that correct?"
Judge O'Connor: That is correct.
Senator Denton: Can you then remember why you did not support S.B. 216, which was a more conservative bill regarding abortion which was pending in the Senate Judiciary Committee after March 23, 1970, roughly a month before the committee's vote on H.B. 20?
Judge O'Connor: Senator Denton, was that Senator McNulty's bill, if you know?
Senator Denton: The bill provided for therapeutic abortions in cases involving rape, incest, or the life of the mother.
I have just been informed that my time is up.
It was Senator McNulty's bill, yes.
May she finish the answer to this question, Mr. Chairman?
The Chairman: She may finish the answer to your question.
Judge O'Connor: Senator Denton, as I recall that bill it provided for an elaborate mechanism of counseling services and other mechanisms for dealing with the question, and I was not satisfied that the complicated mechanism and structure of that bill was a workable one.
Senator Denton: OK. Thank you, Judge O'Connor.
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